Wednesday, November 21, 2012

Munich court skeptical of Nokia patent assertion against Google Talk

The Munich I Regional Court scheduled first hearings today in three cases brought by Nokia, all of which share the patent-in-suit, EP1322072 on "a mobile communication system and a method for connecting a remote workstation to a data communication network via a mobile communication network". The three defendants are -- in the order of today's hearings -- ViewSonic (an Android device maker), RIM, and HTC.

Google is involved with the ViewSonic and HTC cases as a third-party intervenor because Nokia's infringement allegations in these actions are all about Google Talk. Like its wholly-owned subsidiary Motorola Mobility, Google is being represented by Dr. Marcus Grosch of Quinn Emanuel. The head of Google's IP litigation department, Catherine Lacavera, traveled to Munich to attend. ViewSonic, a California company that is not a large player and might not even be interested in defending itself in Germany without support from Google, is represented by German commercial law firm Gleiss Lutz.

This is not the only case brought by Nokia in which Google acts as en intervenor. It even wanted to be included as a respondent in the ITC investigation of Nokia's complaint against HTC, but the ITC granted it only the status of an intervenor. Nor is it the only case in this venue (Munich) in which Google has to defend the Android client of one of its online services against an infringement contention. Microsoft recently amended an infringement complaint against Motorola Mobility in order to require Google to admit or deny allegations relating to Google Maps. The fact that Google at its own initiative elected to participate in an ITC investigation of HTC's products and at least two Munich actions brought by Nokia validates Microsoft's procedural decision.

At the outset of the first hearing (the ViewSonic case), Judge Andreas Mueller outlined his court's preliminary position on claim construction and on Nokia's infringement contentions. Judge Mueller is very skeptical of Nokia's case to say the least, though he did listen attentively to Nokia's counsel, Christian Harmsen of Bird & Bird, who presented Nokia's views.

The Munich-based court has previously held hearings on several other Nokia complaints, which on balance went fairly well for Nokia. Today it experienced its first setback in Munich. Unlike the cases in which the previous hearings took place, today's three cases are before Judge Mueller, in whose court other smartphone patent plaintiffs have previously struggled. Apple was denied a preliminary injunction against Samsung over the rubber-banding (overscroll bounce) patent; Microsoft was denied a preliminary injunction against Motorola (and recently withdrew the related appeal); and Apple was unlikely to prevail on more than a small part of its photo gallery patent case against HTC, with hardly a chance of prevailing on a couple of other multi-touch patents.

The fundamental issue with today's patent-in-suit is that the claim language refers to an interconnecting computer, whose functions Nokia believes are performed by Google's Google Talk service, but the court expressed its relatively strong inclination to believe that Google's servers are part of a data network and not of a telecommunications network. In today's landscape of networked services, the court's preliminary take is relatively narrow, given that a service like Google Talk is, from a functional point of view, a telecommunications service. It's pretty common by now that Internet servers handle certain communications tasks -- Skype is another example. Nokia's proposed understanding of the patent is certainly not narrow, but it's not completely overbroad. It's the kind of infringement theory that some judges are willing to adopt, while some others are not. And at least the initial feedback was that this court disagrees.

The court has scheduled a second hearing, which will effectively be a trial, for late July 2013.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.